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A formal arrest is not required to exclude silence in the face of police questioning.

By Marks & Katz, LLC

At a recent drunk driving bench trial -- in Maryland, where defendants facing over ninety days of possible incarceration for one count may opt for a bench trial followed by a de novo jury trial on appeal, or a jury trial in the first instance -- the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening.  I objected to that line of testimony, on the grounds that my client had a Fifth Amendment right not to answer the question, and to have his silence excluded from evidence. The judge overruled my objection, on the basis that a Terry stop -- Terry v. Ohio, 392 U.S. 1 (1968) -- was in progress, and not an arrest. In my view, the judge's latter ruling erroneously mixed up the caselaw that on the one hand generally does not require Miranda warnings during the initial investigational phase of a stop for a vehicle moving violation, and on the other hand does not permit a suspect to be burnt by asserting the right to remain silent by having that silence come into evidence, whether or not Miranda warnings have been given...continue to full post

Full post as published by Underdog on July 07, 2009 (boomark / email).